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United States District Court for the Northern District of New York
February 4, 2010, Decided; February 4, 2010, Filed
[*70] MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION AND PROCEDURAL BACKGROUND
On December 2, 2008, plaintiffs Cynthia J. Koepp ("Koepp" or "plaintiff"), John D. Place ("Place" or "plaintiff"), Todd Zwigard ("T. Zwigard" or "plaintiff") and Paddington M. Zwigard ("P. Zwigard" or "plaintiff") commenced this action pursuant to Article 15 of the Real Property Actions and Proceedings Law ("RPAPL") in New York State Supreme Court, County of Cayuga. On December 24, 2008, defendant removed the action to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Plaintiffs seek a determination of a claim to real property. According to the complaint, "the action concerns a strip of land 40 feet wide running very near the shores of Cayuga Lake formerly used as a railroad bed by the Cayuga Lake Railroad and then by successor railroad companies, including the Lehigh Valley Railroad Company". 1 The former [**2] railroad property was subsequently conveyed to defendant and plaintiffs claim ownership to "parcels of land through which said 40-foot former railroad land runs". 2 Plaintiffs also claim that pursuant to their deeds, they have easements over the 40-foot strip to access the western portion of their properties. In the alternative, plaintiffs seek to obtain and quiet title to said easements through adverse possession, necessity or prescription.
Prior to removal, plaintiffs filed an Order to Show Cause seeking a preliminary injunction enjoining and restraining defendant from building a permanent fence pending the termination of the action. On December 2, 2008, the Honorable Thomas G. Leone issued an ex parte order with a temporary restraining order. The Order provided, inter alia:
ORDERED, that pending the hearing of this Order to Show Cause for a preliminary injunction, plaintiffs are granted a temporary restraining order that the defendants herein be and [**3] hereby are enjoined and restrained from installing any additional fencing (not presently installed) that interferes with the use of the alleged easements. 3
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688 F. Supp. 2d 65 *; 2010 U.S. Dist. LEXIS 9606 **
CYNTHIA J. KOEPP, JOHN D. PLACE, TODD ZWIGARD AND PADDINGTON M. ZWIGARD, Plaintiffs, vs. SUSANNE HOLLAND, Defendant.
Subsequent History: Motion granted by, Motion denied by, Certification denied by Koepp v. Holland, 2011 U.S. Dist. LEXIS 167864 (N.D.N.Y., Mar. 15, 2011)
Affirmed by Koepp v. Holland, 593 Fed. Appx. 20, 2014 U.S. App. LEXIS 22108 (2d Cir., Nov. 21, 2014)
easement, deed, Lake, strip, Railroad, Map, plaintiffs', conveyed, feet, adverse possession, shore, fencing, premises, railroad company, summary judgment, conveyance, reservations, railroad, crossing, parcel, thence, chain of title, appurtenances, grantor, parties, right of way, resident, conveyance of land, defendant argues, erect
Civil Procedure, Judgments, Summary Judgment, Evidentiary Considerations, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Entitlement as Matter of Law, Genuine Disputes, Real Property Law, Deeds, Construction & Interpretation, Evidence, Preponderance of Evidence, Inferences & Presumptions, Presumptions, General Overview, Adverse Possession, Elements of Adverse Claims, Appropriateness, Encumbrances, Adjoining Landowners, Easements, Governments, State & Territorial Governments, Property, Easements, Easement Creation, Easement by Prescription, Express Easements, Limited Use Rights, Appurtenant Easements, Transportation Law, Rail Transportation, Lands & Rights of Way, Termination of Easements, Bankruptcy Law, Administrative Powers, Estate Property Lease, Sale & Use, Sales Free of Interest, Remedies, Injunctions, Preliminary & Temporary Injunctions, Temporary Restraining Orders, Grounds for Injunctions